SOM NATH & OTHERS Vs. SMT. GOMA

JUDGEMENT

(1.) This Regular Second Appeal has been filed by the defendants against the judgments and decrees of the courts below for possession of the property in dispute. The necessary facts out of which the present appeal has arisen may briefly be noticed in the first instance: The plaintiff filed the present suit averring that she is the owner of the suit property having purchased the same vide registered sale deed dated 15.1.1982 from Lakshmi Chand and Phool Chand, the original owners. The defendant appellants filed another suit for injunction against the present plaintiff alleging therein that they w ere tenants in respect of a portion of the suit property under the previous owners. Lakshmi Chand and Phool Chand etc. It was held by the trial Court in that litigation that they were in possession of the suit property as tenants but in appeal the findings were reversed and it was held by the first appellate court that the defendants were in possession as trespassers and not as tenants. In the present suit, it was averred by the plaintiff that the defendants took illegal possession in May 1982 and were liable to vacate the property as trespassers. The suit was contested by the defendant-appellants on the ground that they were in possession of the suit property for the last more than 40 years and construction was raised by them in 1969. According to their defence they asserted that they were tenants of Lakshmi Chand and Phool Chand and that they were not trespassers. In the alternative it was pleaded that they had become owners by adverse possession. On the pleadings of the parties, the trial Court framed the following issues:

(2.) Issues Nos. 1 to 3 were decided by the trial Court in favour of the plaintiff and against the defendant appellants. It was held that the plaintiff is owner of the property in dispute and that she is entitled to its possession. It was further held that the defendants were not in adverse possession of the disputed property. The trial Court placed reliance upon judgment Exhibit P.3 given in the previous litigation between the defendants and the previous owners wherein it was held that the defendants were not tenants and were trespassers. Moreover, the defendants were held guilty of withholding best evidence, of the previous owners who could have come to the court and substantiate the plea of tenancy. The entire evidence led by the plaintiff and the defendants was discussed. The other issues, as the perusal would show, are hardly relevant. Against the judgment and decree of the trial Court, the defendants-appellants filed an appeal before the Additional District Judge who has affirmed the judgment and decree of the trial Court. Before the first appellate court an application was filed for seeking permission of the court by defendant Nos.1 and 2 to permit them to step into the witness-box for recording their statements. The application by way of additional evidence has rightly been rejected by the court. The oral evidence of the defendants could not have created a dent in the documentary evidence according to which the plaintiff was held to be owner of the disputed property.

(3.) In second appeal before this Court, the learned counsel for the appellant has vehemently argued that in the assessment register of the Municipal Committee for the year 1970-71, the defendants are recorded to be owners. The endeavour of the counsel for the appellant is that this court while relying upon the evidence of entries in the assessment register should held that the plaintiff is in adverse possession. The argument is not acceptable. The defendants are not recorded, to be in adverse possession of the disputed property. The factum of electricity bills being in the name of the defendants cannot prove ownership of the defendant- appellants. It has further been argued by the counsel for the appellant that Exhibits P.3 and P.4 showing the possession of the defendants since 1971-72 negatives the plea of the plaintiff that the defendants have taken forcible possession in the year 1981-82. This argument again is un-acceptable. As has been observed, the defendants are not shown to be in adverse possession in any entry. The plea of tenancy of the defendants cannot be upheld in view of the decision having been rendered by the court earlier up holding Exhibit P.3 wherein defendants were not found to the tenants. Rather, they were found to be trespassers in the previous litigation. The finding of facts recorded by the courts below are based upon good evidence and the same are not liable to be interfered in second appeal. For the reasons recorded above, the appeal is found to be meritless and the same is consequently ordered to be dismissed with no order as to costs. Appeal dismissed.